The
end of the Invenergy case is in sight
Invenergy‘s proposal for a $1 billion fracked gas and
diesel oil burning power plant, aimed at the pristine forests of
northwest Rhode Island is still before
the Energy Facilities Siting Board (EFSB) and the case is now in its
fourth year. Opposition to the power plant in Burrillville, where the plant is intended to be built and across the state, stands firm. Equally firm, it appears, is Invenergy’s intention to build the plant.
Jerry
Elmer, senior attorney
at Conservation Law Foundation (CLF) is one of the lawyers
litigating against the power plant before the EFSB. The other attorney is Michael McElroy, litigating on
behalf of the Town of Burrillville.)
Elmer provided a set of
insights into the case that is the basis of this piece.
“First, the good news,” writes Elmer. “Opponents of Invenergy start the new year in a better position than we have been in since the case started [on] October 29, 2015. I say this for at least four reasons:
“First, on September 20, the ISO – the operator of
the New England electricity grid
– terminated Invenergy’s Capacity
Supply Obligation (CSO)
over Invenergy’s very strong objections.
“Second, on September 28, the ISO
disqualified Invenergy from even participating in the ISO’s next Forward Capacity Auction (on
February 4). Taken together, these two actions by the ISO signaled in an
unmistakable way that Invenergy’s electricity is neither needed nor wanted for
keeping the New England electricity grid reliable. This is important because
the most important single issue in the case is whether the proposed plant is
needed. If the plant is needed, it would be difficult to deny it a permit;
conversely, if the plant is not needed, it will be difficult to grant it a
permit.
“Third, on October 31, the EFSB
voted to reject the Advisory Opinion it had received from the Rhode Island Public Utilities Commission (PUC), which Advisory Opinion
stated that the Invenergy plant was needed and cost effective. This EFSB
decision was indicative of a growing skepticism on the part of (at least some)
EFSB members as to whether the proposed plant is needed. Thus, these three factors
together show both that the plant is not needed and that the EFSB seems to
understand that fact.
“And there is a fourth reason for
optimism as well: The oral argument presented on October 31 by Burrillville’s
lawyer, Michael McElroy, in support of Burrillville’s motion to reject the PUC
Advisory Opinion. That oral argument quoted the many, many, many times that
Invenergy has argued that the fact that it had a CSO from the ISO meant that
the plant was needed. The inescapable conclusion to be drawn from Invenergy’s
own repetition of this assertion was that – now that the CSO has been canceled – it is clear that Invenergy is not needed. Mike’s oral argument on October 31
obviously worked in having the EFSB vote to reject the PUC Advisory Opinion;
but I believe Mike’s oral argument also worked in another very important way as
well: planting the idea firmly in the minds of the EFSB members that the loss
of the CSO means that the proposed plant is not needed.
“For all of the foregoing reasons, I
believe it is now likely that the EFSB will vote to deny a permit to
Invenergy.”
Given all this, one
would think Invenergy ready to pack things in. But surprisingly, they are not.
“Here is the big surprise,” writes
Elmer. “Invenergy is moving full steam ahead. This is obvious from the way
Invenergy continues to pour money into the project (for example, by needlessly
sending five or six lawyers to every hearing). Any possible doubt that
Invenergy is moving full speed ahead was dispelled on December 18 when
Invenergy filed multiple documents with the EFSB. For example, Invenergy made a
minor adjustment in the base elevation of the power block (to assist with
stormwater management) and made another minor adjustment is its stack height
(in order to secure Federal Aviation Administration (FAA) approval for the new stack
height).
“It is as surprising to me as it is
to you, but Invenergy is moving ahead and really wants to get a building
permit. One take-home message from this situation is that now is not a time to
rest in the fight against Invenergy. Just as Invenergy is moving ahead, so must
opponents continue the fight…
“Although I believe it is unlikely
that Invenergy gets a permit, Invenergy’s decision to continue the case is not
necessarily wacky. Invenergy started working on this proposed plant in 2014,
and this EFSB docket has been going since 2015. We are now 95 percent done with
the case, and the amount of money Invenergy will have to spend from here to the
end of the docket is relatively small (compared to what Invenergy has spent to
get to this point). Having come so far already, Invenergy may figure it is
rational to see the case through to the end.”
So what’s ahead for the
Invenergy proposal in 2019?
“In January, the EFSB will be
heavily focused on the crucially important issue of whether the plant is
needed,” writes Elmer. “The witnesses addressing need will be heard on Tuesday
and Wednesday, January 8 and 9, and on Wednesday and Thursday, January 16 and
17. Because Invenergy has the burden of proof on every issue in the case,
Invenergy’s witness on need, Ryan Hardy, will go
first. My belief is that Mr Hardy will take all January 8 and probably run into
January 9. This is true for several reasons. First, Mr Hardy has said so many
things that are not true (and some that are truly fatuous) that cross-examining
Hardy will take a long time as we go – slowly and lovingly – through his many
mistakes, wrong predictions, and nonsense. Second, Mr Hardy is incapable of
giving a concise answer. Even when a question ought to be answered by yes or
no, he rambles on at length. (This is great for our side, because it makes Mr
Hardy appear unreliable and evasive.) Third, Invenergy’s lawyer is likely to
spend a great deal of time trying to rehabilitate Mr Hardy’s credibility after
very long cross-examination by CLF and Burrillville. Burrillville’s witness on
need, Glenn Walker, will go after Mr
Hardy; and CLF’s witness on need, Robert
Fagan, will go after Mr Walker. I am guessing that Messrs Walker and
Fagan will testify on January 16 and 17.
“On January 24 and 30, witnesses on
biodiversity impacts and forest connectivity issues will testify. CLF’s witness
on these issues is Scott Comings of The Nature Conservancy.
“As of now, the last days of witness
testimony are now scheduled for February 6 and 7 (and for the reasons I stated
above, CLF is hoping that these dates will stay firm). Invenergy’s
spokesperson, John Niland,
will be cross-examined on these dates.
“EFSB meetings are open to the
public, and your attendance is an important way to show the EFSB, reporters,
and the world that there is grassroots opposition to Invenergy’s proposal to
pave a forest in order to build a new, unneeded fossil fuel power plant. I
encourage you to attend these sessions…
“After all the witnesses are heard,
the lawyers will get about six weeks to submit Post-Hearing
Memoranda. These will summarize the evidence and make legal argument
about why the permit should be approved or denied. If testimony actually ends
on February 7, it is likely that Post-Hearing Memoranda will be due no later
than, say, March 31. After that, the EFSB will hold one or several so-called ‘Open Meetings‘ to discuss the
issues in the case. At Open Meetings, the EFSB members discuss the case, but
neither the lawyers for the parties nor the public speak. It is likely (but not
certain) that there will be more than one such Open Meeting because the EFSB
has multiple issues to discuss and vote on, including (but not limited to): Is
the plant needed? Is the plant cost-justified? Would the plant have
unacceptable environmental consequences? Is Invenergy’s stormwater plan
acceptable? Does Invenergy have a secure water source? At the last Open
Meeting, the EFSB will take a vote on whether or not to grant a permit to
Invenergy.
“After the EFSB vote is taken, the
EFSB staff must prepare a written Order reflecting
the EFSB decision. Because the Order normally reviews all the issues in the
case (and reviews the evidence on both sides of every issue), the Order can run
to over 100 pages in length, and it can take some weeks for the staff to draft.
It is the issuance of the Order that constitutes the technical end of the case
and is the event that is appealable to the Rhode
Island Supreme Court by the losing side. Assuming that Post-Hearing
Memoranda are filed by the end of March, it is reasonable to expect the EFSB to
hold its Open Meetings in April and have voted to grant or deny a permit by the
end of April (though the actual Order reflecting the decision could be delayed
for additional weeks).”
